SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

393 

CA 16-01572 

PRESENT: SMITH, J.P., PERADOTTO, DEJOSEPH, NEMOYER, AND SCUDDER, JJ. 

 

MILDRED LINGENFELTER, PLAINTIFF-RESPONDENT, 

V MEMORANDUM AND ORDER

DELEVAN TERRACE ASSOCIATES, ET AL., DEFENDANTS, 

AND WILLIAM KROTZ CONTRACTING, DEFENDANT-APPELLANT.

 

BROWN & KELLY, LLP, BUFFALO (PAUL CALLAHAN OF COUNSEL), FOR

DEFENDANT-APPELLANT.

STAMM LAW FIRM, BUFFALO (BRIAN TOWEY OF COUNSEL), FOR

PLAINTIFF-RESPONDENT. 

 

Appeal from an order of the Supreme Court, Cattaraugus County

(Jeremiah J. Moriarty, III, J.), entered May 9, 2016. The order

denied the motion of defendant William Krotz Contracting for summary

judgment dismissing the amended complaint and all cross claims against

it. 

It is hereby ORDERED that the order so appealed from is

unanimously reversed on the law without costs, the motion is granted,

and the amended complaint and the cross claim against defendant

William Krotz Contracting are dismissed. 

Memorandum: Plaintiff commenced this action seeking damages for

injuries she allegedly sustained when she slipped and fell on ice and

snow between parking spaces in the parking lot of an apartment complex

owned and operated by defendants Delevan Terrace Associates,

Cattaraugus Community Action, Inc., and Cattaraugus Rural Housing

Corporation (collectively, apartment defendants). The apartment

defendants contracted with defendant William Krotz Contracting (Krotz)

to provide snowplowing services for the property. On appeal, Krotz

contends that Supreme Court erred in denying its motion for summary

judgment seeking dismissal of the amended complaint and any cross

claims against it. We agree.

Inasmuch as “a finding of negligence must be based on the breach

of a duty, a threshold question in tort cases is whether the alleged

tortfeasor owed a duty of care to the injured party” (Espinal v

Melville Snow Contrs., 98 NY2d 136, 138). Here, any duty that Krotz

had with respect to snowplowing on the subject property arose

exclusively out of its contract with the apartment defendants (see

Church v Callanan Indus., 99 NY2d 104, 111). It is well settled,

however, that “ ‘a contractual obligation, standing alone, will impose
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CA 16-01572 

a duty only in favor of the promisee and intended third-party

beneficiaries’ ” (Espinal, 98 NY2d at 140), and “will generally not

give rise to tort liability in favor of a third party,” i.e., a person

who is not a party to the contract (id. at 138; see Church, 99 NY2d at

111). There are “three situations in which a party who enters into a

contract to render services may be said to have assumed a duty of

care—and thus be potentially liable in tort—to third persons: (1)

where the contracting party, in failing to exercise reasonable care in

the performance of his duties, ‘launche[s] a force or instrument of

harm’ . . . ; (2) where the plaintiff detrimentally relies on the

continued performance of the contracting party’s duties . . . and (3)

where the contracting party has entirely displaced the other party’s

duty to maintain the premises safely” (Espinal, 98 NY2d at 140).

Even assuming, arguendo, that the allegations in the pleadings

are sufficient to require Krotz to negate the possible applicability

of the first Espinal exception in establishing its prima facie

entitlement to summary judgment (cf. Baker v Buckpitt, 99 AD3d 1097,

1099; Sniatecki v Violet Realty, Inc., 98 AD3d 1316, 1320; Foster v

Herbert Slepoy Corp., 76 AD3d 210, 214), we conclude that Krotz met

its initial burden of establishing that it did not launch a force or

instrument of harm by creating or exacerbating a dangerous condition

(see generally Espinal, 98 NY2d at 142-143). Krotz’s submissions,

including the contract, the deposition testimony of the property

manager for the apartment complex, and the deposition testimony and

affidavit of Krotz’s owner, established that Krotz plowed the center

driving lane of the parking lot in accordance with its

responsibilities under the contract and did not undertake any snow

removal operations with respect to the condition between the parking

spaces that caused plaintiff’s injury. “[B]y merely plowing the snow,

as required by the contract, [Krotz’s] actions could not be said ‘to

have created or exacerbated a dangerous condition’ ” (Fung v Japan

Airlines Co., Ltd., 9 NY3d 351, 361; see Espinal, 98 NY2d at 142; cf.

Rak v Country Fair, Inc., 38 AD3d 1240, 1241).

Plaintiff failed to raise an issue of fact whether Krotz

negligently created or exacerbated a dangerous condition (see

generally Zuckerman v City of New York, 49 NY2d 557, 562). Moreover,

even assuming, arguendo, that Krotz was negligent in failing to plow

the parking spaces as alleged by plaintiff, we conclude that “such

negligence would amount[] to a finding that [Krotz] may have merely

failed to become an instrument for good, which is insufficient to

impose a duty of care upon a party not in privity of contract with the

injured party” (Mesler v PODD LLC, 89 AD3d 1533, 1535 [internal

quotation marks omitted]; see Church, 99 NY2d at 112; Foster, 76 AD3d

at 215).

It is undisputed that plaintiff did not detrimentally rely on

Krotz’s continued performance of its contractual obligations, and thus

the second Espinal exception cannot form a basis for liability (see

Foster, 76 AD3d at 215).

In establishing its prima facie entitlement to summary judgment,

Krotz was not required to negate the third Espinal exception inasmuch
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CA 16-01572 

as there are no allegations in the pleadings that would establish the

applicability of that exception, i.e., that Krotz entirely displaced

the apartment defendants’ duty to maintain the premises safely (see

Sniatecki, 98 AD3d at 1320). Defendant nonetheless negated that

exception, and plaintiff failed to raise an issue of fact (see

Zuckerman, 49 NY2d at 562). Here, while the contract provided Krotz

with some discretion in fulfilling its snowplowing obligations, its

terms made Krotz directly responsible to the property manager who had

the right to request additional services and oversaw maintenance of

the property, including snowplowing (see Torella v Benderson Dev. Co.,

307 AD2d 727, 728). We thus conclude that “the contract between

[Krotz] and the [apartment defendants] was not so comprehensive and

exclusive that it entirely displaced the [apartment defendants’] duty

to maintain the premises safely, such that [Krotz] owed a duty to

plaintiff” (Eisleben v Dean, 136 AD3d 1306, 1307; see Espinal, 98 NY2d

at 141).

Finally, we agree with Krotz that the court erred in denying its

motion insofar as it sought dismissal of the apartment defendants’

cross claim for contribution and indemnification (see generally Peters

v United Ref. Co. of Pa., 57 AD3d 1512, 1512-1513).

Entered: April 28, 2017 Frances E. Cafarell

Clerk of the Court